I concur entirely with the presiding justice that the judgment sought to be appealed from is erroneous, and that whenever properly brought before this court it must be reversed or substantially modified. Clearly the defendant is aggrieved by it, and the only question is whether or not it should have sought redress by an appeal from .the judgment or by moving at Special Term, and if its motion for relief had been denied, appealing from the order denying the motion. That question depends upon the further question whether or not the judgment was one rendered on default, within the meaning of section 1294 of the Code of Civil Procedure.
The history of the case may be briefly stated as follows: The action called in question the amount assessed upon plaintiff as a member of a mutual benefit life insurance company. It charged not only that excessive assessments had been collected in the past, but that defendant unless restrained would continue to levy such excessive assessments in the future. Judgment was demanded (1) for an injunction as to future assessments, (2) for an accounting as to assessments collected in the past, and (3) the recovery of the amount found due upon such accounting.
The defendant demurred upon several grounds, those chiefly relied upon being lack of jurisdiction of the defendant and of the subject-matter of the action.
The issues of law thus raised were brought on for hearing at Special Term and an interlocutory judgment entered overruling the demurrer, the judgment giving leave to defendant *508to withdraw its demurrer and answer over, and providing that in case defendant did not answer “then that plaintiff have final judgment against the defendant for the relief demanded in the complaint.” This judgment was affirmed at the Appellate Division. (159 App. Div. 121.) Defendant being refused leave to appeal to the Court of Appeals (Id. 906), and being unable to appeal without said leave, elected to stand upon its demurrer, and neglected to withdraw it and answer over. Thereupon plaintiff served notice of an application to Special Term for a judgment, as by default, for the relief demanded in the complaint. Defendant did not appear on the return of the motion and the judgment complained of was entered.
Instead of granting an injunction and directing an accounting as prayed for in the complaint, and as defendant might reasonably-have expected would have been the judgment granted, the court proceeded to take ex parte affidavits, and thereupon to make findings of fact as to the amounts which defendant had been overpaid. This, of course, was wholly irregular, and we are bound to assume that if defendant had appeared upon the motion and'made proper representations to the court, no such irregular and unauthorized judgment would have been entered.
Was this judgment one entered by default within the meaning of section 1294 of the Code of Civil Procedure ?
A similar question was considered by the General Term in the Fourth Department in Smith v. Barnum (3 N. Y. Supp. 476). In that case, as in this, the defendants had demurred, their demurrer was overruled, they served no answer, and thereupon judgment was entered for plaintiff. Defendants appealed and it was objected that the judgment was unappealable, having been entered on default. The court said: “In the order overruling the demurrers leave was given to withdraw the demurrers and to serve an answer within twenty days after the service of a copy of such interlocutory judgment upon them. The order further provided, viz.: If they shall not withdraw their demurrers as herein provided, and answer the complaint, then the plaintiff shall have final judgment against them for the relief demanded in the plaintiff’s complaint.’ Inasmuch as the judgment is entered in pursuance of the direction contained in the order, we are of the opinion that it was not a judgment *509by default.” The court thereupon entertained the appeal from the judgment. The saíne question arose under like circumstances in People v. Manhattan Real Estate Co. (74 App. Div. 535; revd. on other grounds, 175 N. Y. 133), and the court followed the same ruling.
The same question came before the Appellate Division in the Second Department in Mathot v. Triebel (102 App. Div. 426). That was an action to establish a lien and the complaint asked inter alia that “ the extent of this plaintiff’s said lien and claim be ascertained and determined and the defendant adjudged to pay the same. ” The defendant demurred and, upon his demurrer being overruled, failed to answer, whereupon plaintiff moved for judgment. The court awarded final judgment for the amount claimed in the complaint. The defendant appealed from the judgment, and it was objected that an appeal would not lie because the judgment had been entered on default. The court, however, entertained the appeal, saying: “ The demurrer was equivalent to a general appearance (Code Civ. Proc. § 421), and the defendant was entitled to notice of the assessment by the clerk, as well as of the application to the court (Id. § 1219) and to ‘ challenge the amount of recovery, even by affirmative evidence, in diminution of damages.’ (Bassett v. French, 10 Misc. Rep. 672; appeal dismissed, 155 N. Y. 46.) ”
In the present case the plaintiff was entitled to enter judgment for the relief demanded in the complaint, by virtue of the interlocutory judgment overruling the demurrer. That judgment, so far as it could be entered in advance of an accounting was only for an injunction and an accounting. To that extent the defendant could not have successfully opposed the motion for judgment and it was, therefore, unnecessary for it to appear in opposition. It was, however, not called upon to anticipate that the court would go further and decree the amount due without an accounting and without legal evidence.
I am, therefore, of the opinion that the judgment was not one entered on default within the meaning of section 1294 of the Code of Civil Procedure as heretofore construed, and that it is, therefore, appealable.
*510The proper disposition of the appeal, as I think, is to modify the judgment so as to reduce it to the' form that it should have taken in the first instance, that is a judgment for an injunction and for an accounting; as so modified the judgment should be affirmed, without costs. From that judgment I should be disposed to permit an appeal to the Court of Appeals so that the fundamental question raised by defendant may be speedily determined.
Clarke, Dowling and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.